Patent absurdity
If patent law had been applied to novels in the 1880s, great books would not
have been written. If the EU applies it to software, every computer user will
be restricted, says Richard Stallman
Monday
June 20, 2005
Next month, the
European Parliament will vote on the vital question of whether to allow patents
covering software, which would restrict every computer user and tie software
developers up in knots.
Many politicians may be voting blindly -
not being programmers, they don't understand what software patents do. They
often think patents are similar to copyright law (except for some details),
which is not the case.
For example, when I publicly asked
Patrick Devedjian, then the minister for industry,
how
Those who imagine effects like those of
copyright law cannot grasp the real effects of software patents. We can use
Hugo as an example to illustrate the difference between the two.
A novel and a modern complex programme have certain points in common: each is large and
implements many ideas. Suppose patent law had been applied to novels in the
1800s; suppose states such as
Consider the novel Les Misérables, written by Hugo. Because he wrote it, the
copyright belonged only to him. He did not have to fear that some stranger
could sue him for copyright infringement and win. That was impossible, because
copyright covers only the details of a work of authorship, and only restricts
copying. Hugo had not copied Les Misérables, so he
was not in danger.
Patents work differently. They cover
ideas - each patent is a monopoly on practising some
idea, which is described in the patent itself.
Here's one example of a hypothetical
literary patent:
Claim 1: a communication process that
represents, in the mind of a reader, the concept of a character who has been in jail for a long time and becomes bitter
towards society and humankind.
Claim 2: a communication process according
to claim 1, wherein said character subsequently finds moral redemption through
the kindness of another.
Claim 3: a communication process
according to claims 1 and 2, wherein said character changes his name during the
story.
If such a patent had existed in 1862 when
Les Misérables was published, the novel would have
infringed all three claims - all these things happened to Jean Valjean in the novel. Hugo could have been sued, and would
have lost. The novel could have been prohibited - in effect, censored - by the
patent holder.
Now consider this hypothetical literary
patent:
Claim 1: a communication process that
represents, in the mind of a reader, the concept of a character who has been in jail for a long time and subsequently
changes his name.
Les Misérables
would have infringed that patent too, because it also fits the life story of
Jean Valjean.
These patents would all cover the story
of one character in a novel. They overlap, but they do not precisely duplicate
each other, so they could all be valid simultaneously - all the patent holders
could have sued Victor Hugo. Any one of them could have prohibited publication
of Les Misérables.
You might think these ideas are so simple
that no patent office would have issued them. We programmers are often amazed
by the simplicity of the ideas that real software patents cover - for instance,
the European Patent Office has issued a patent on the progress bar, and one on
accepting payment via credit cards. These would be laughable if they were not
so dangerous.
Other aspects of Les Misérables
could also have fallen foul of patents. For instance, there could have been a
patent on a fictionalised portrayal of the Battle of
Waterloo, or a patent on using Parisian slang in fiction. Two
more lawsuits.
In fact, there is no limit to the number
of different patents that might have been applicable for suing the author of a
work like Les Misérables. All the patent holders
would claim they deserved a reward for the literary progress that their
patented ideas represented - but these obstacles would not promote progress in
literature. They would only obstruct it.
However, a very broad patent could have
made all these issues irrelevant. Imagine patents with broad claims, like
these:
Communication process structured with
narration that continues through many pages.
A narration structure
sometimes resembling a fugue or improvisation.
Intrigue articulated around the
confrontation of specific characters, each in turn setting traps
for the others.
Who would the patent holders have been?
They could have been other novelists, perhaps Dumas or Balzac, who had written
such novels - but not necessarily.
It isn't necessary to write a programme to patent a software idea, so if our hypothetical
literary patents follow the real patent system, these patent holders would not
have had to write novels, or stories, or anything - except patent applications.
Patent parasite companies - businesses
that produce nothing except threats and lawsuits - are growing larger.
Given these broad patents, Hugo would not
have reached the point of asking what patents might get him sued for using the
character of Jean Valjean. He could not even have
considered writing a novel of this kind.
This analogy can help non-programmers to
see what software patents do. Software patents cover features, such as defining
abbreviations in a word processor or natural order recalculation in a
spreadsheet.
They cover algorithms that programmes need to use. They cover aspects of file formats,
such as Microsoft's new formats for Word files. The MPEG 2 video format is
covered by 39 different
Just as one novel could infringe many
different literary patents at once, one programme can
infringe many different patents at once. It is so much work to identify all the
patents infringed by a large programme that only one
such study has been done.
A 2004 study of Linux, the kernel of the
GNU/Linux operating system, found that it infringed 283 different
The text of the directive approved by the
council of ministers clearly authorises
patents covering software techniques.
Its backers claim the requirement for
patents to have a "technical character" will exclude software patents
- but it will not. It is easy to describe a computer programme
in a "technical" way, the boards of appeal of the European Patent Office said.
The board is aware that its comparatively
broad interpretation of the term "invention" in Article 52 (1) EPC
will include activities so familiar that their technical character tends to be
overlooked, such as the act of writing using pen and paper.
Any usable software can be "loaded
and executed in a computer, programmed computer network or other programmable
apparatus" in order to do its job, which is the criterion in article
5 (2) of the directive for patents to prohibit even the publication of programmes.
The way to prevent software patents from
bollixing software development is simple: don't authorise
them. In the first reading, in 2003, the European parliament adopted the
necessary amendments to exclude software patents, but the council of ministers
reversed the decision.
Citizens of the EU should phone their MEPs without delay, urging them to sustain the parliament's
previous decision in the second reading of the directive.
© 2005 Richard Stallman
(rms@gnu.org). Verbatim copying and distribution of
this entire article are permitted worldwide without royalty in any medium
provided this notice is preserved.
· Richard Stallman launched the GNU operating system
(www.gnu.org) in 1984 and founded the Free Software Foundation (fsf.org) in
1985. Gérald Sédrati-Dinet
devised the examples in this article